Discrimination and Hate: Over-Criminalization or New Normativity?

Charis Papacharalambous

Abstract

Criminal legislation against hate speech is controversial. Main objections against such legislation refer to primacy of freedom of speech, the disproportion of the penal reaction and reservations as to the effectiveness of penal control. On the other hand, repression of hate speech seems well founded since a serious harm or at least a significant offense can be traced in such conduct. This paper argues in favor of an extensive and holistic incrimination of hate speech. Points of departure are a normative rather than naturalistic conception of harm, the connection to democratic militancy as legitimacy base of the respective criminal law control, and the abandonment of a full-fledged liberalism as this is displayed through the US paradigm as to dealing with hate speech. It is also argued that this standpoint fits better in a proper doctrinal frame concerning hate speech and discriminatory conduct. In this regard as certain traits of a proper criminal reaction to hate speech are discerned the group based legal nature of the insulting behavior, the preventive orientation of the criminal law system, especially the conception of hate speech acts as inchoate offences, the limitations as to accepting error of facts objections of the defendant, and the criminal significance of the perpetrator’s ‘animus’, from which the very harmfulness of the conduct cannot be separated. As conclusion it is submitted that a ‘maximum’ criminal law against hate is needed expressing the normative primacy of democracy over abstract and negative ‘freedom’.

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